Judgment:
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated 7th May, 1997 passed by the Assistant District Judge, Ninth Court, Alipore, District-South 24-Parganas, in Title Suit No. 32 of 1991 thereby granting a decree for recovery of possession of Schedule 'A' property, as mentioned in the counterclaim, in favour of the defendant with a direction upon the plaintiffs to hand over possession in favour of the defendant within three months from the date of passing of decree.
2. Being dissatisfied, the plaintiffs have come up with the present first appeal.
3. It appears from record that in the suit for specific performance of contract, the written statement was filed in the month of August, 1991 and long thereafter, on 16th June, 1994, while the hearing of the suit was going on by leading evidence, the defendant came up with an application for amendment of the written statement and the learned Trial Judge by the order dated 16th June, 1994 allowed such application. In the said application for amendment of the written statement, the defendant pleaded that he was entitled to recover possession of the portion of the property lying on the northern side of the building, a part of the building being the subject-matter of the agreement for sale, from the plaintiffs with further prayer for recovery of Rs. 20,142/- on account of electricity charges, proportionate share of municipal rates and taxes and cost of procuring water, partly by labourers and partly, by fixing separate water pipeline and new electric motor pump.
4. It, however, appears from record that the said amendment was not in the form of counterclaim as provided in the Code of Civil Procedure. There was no prayer portion of the counterclaim in a manner provided for the plaint, there was no valuation of the various relief claimed separately in the body of the averments and at the same time, there was no averment as to when the cause of action for filing of such counterclaim arose. Even there was no Schedule 'A' to the counterclaim although the learned Trial Judge has decreed in terms of the Schedule 'A' to the counterclaim. Over and above, even no court-fee was paid on the said counterclaim and no separate number was mentioned for such counterclaim.
5. Being dissatisfied, the plaintiffs have come up with the present first appeal.
6. The only question that arises for determination in this appeal by the plaintiff, who has already got a decree for specific performance of contract against the defendant, is that in the suit filed by the plaintiffs whether there was any scope of granting a decree for recovery of possession when there was no counterclaim registered in accordance with law and at the same time, counterclaim was not feasible in accordance with the provision of law.
7. According to Mr. Basu, the learned advocate appearing on behalf of the appellants, there is no scope of lodging any counterclaim after the trial has started and the evidence has been adduced by the parties. According to him, the alleged cause of action in this case had arisen after the filing of the written statement. Mr. Basu, therefore, prays for setting aside the decree passed on alleged counterclaim.
8. Mr. Chatterjee, the learned senior advocate appearing on behalf of the defendant, has, on the other hand, supported the decree passed on the counterclaim and has contended that if the application for amendment of the written statement which was allowed by the learned trial Judge is read as a whole it would appear that it was really a counterclaim and merely because no court-fee was paid or that there was no formal prayer portion or no averment regarding accrual of cause of action indicating the date, this Court can allow his client to rectify those mistakes in this appeal. According to Mr. Chatterjee, the procedures are the handmaid of justice and, thus, this Court should not set aside the decree passed on counterclaim for such technical point raised by the plaintiffs.
9. Mr. Chatterjee further contends that by way of counterclaim his client prayed for recovery of Rs. 23,000/- and odd in addition to the prayer for recovery of possession for which no valuation was mentioned. According to Mr. Chatterjee, in the absence of any valuation given by his client on the relief of recovery of possession, this appeal is also not maintainable before this Court and the appeal ought to have been preferred before the learned District Judge according to the provision of the Bengal, Agra, Assam Civil Courts Act. He, therefore, prays for dismissal of the appeal.
10. Therefore, the first question that arises for determination in this appeal is whether the present appeal is maintainable before this Court or the same should be filed before the learned District Judge.
11. It is true that the counterclaim was not valued nor was any court-fees paid but the suit was valued above Rs. 2 lakh. In our view, Mr. Basu is quite justified in contending that there being no counterclaim in the eye of law and the decree having been passed in a suit valued above Rs. 2 lakh, this Court is competent to entertain this appeal. Mr. Basu submits that the position would have been different if the counterclaim was separately valued at an amount of less than Rs. 1,50,000/- by the defendant.
12. The next question is whether the learned Trial Judge was justified in granting a decree on the basis of counterclaim.
13. After hearing the learned Counsel for the parties and after going through the materials on record, we find that there is no formal counterclaim within the meaning of Order VI Rule 8A of the Code. The counterclaim was not registered as a separate proceeding nor was any court-fee paid thereon. Even no statement was made regarding accrual of cause of action. It is well settled that in the counterclaim, the ingredients of Order VII Rule 1 must be established. In this case, the application for amendment of the written statement introducing the alleged counterclaim was made at the time of trial and it appears that no issue was even framed by the Trial Court for such counterclaim. Not a sentence has been pleaded showing the accrual of cause of action nor has any such date disclosed in the evidence of the defendant indicating accrual of such cause of action. Unless such date is disclosed the Court is not in a position to ascertain whether such cause of action arose before the filing of the written statement or before the time of filing written statement expired. In the absence of any such averments, evidence and finding of the Trial Court holding that the cause of action for counterclaim arose within the time mentioned in Order VIII Rule 6A of the Code, the Court below could not pass a decree on the purported counterclaim even if we ignore the defect of non-registration of the counterclaim as a mere technical mistake.
14. Therefore, the learned Trial Judge erred in law in passing decree on counterclaim which was non est in the eye of law. We, accordingly, set aside the decree on counterclaim.
15. We make it clear that we have not otherwise gone into the merit of the dispute involved in the purported counterclaim raised by the defendant in the written statement by way of amendment.
16. In the facts and circumstances, there will be, however, no order as to costs.
Bhaskar Bhattacharya, J.
I agree.